Employers urged not to passively discriminate

A prominent employment lawyer is encouraging employers to know their obligations when it comes to accommodating a worker with a disability – and the reach of the law spans much further than most people believe.

A prominent employment lawyer is encouraging employers to know their obligations when it comes to accommodating a worker with a disability – and the reach of the law spans much further than most people believe.

“I think there's probably not a huge understanding, even amongst employers, about this obligation to make ‘reasonable adjustments’. The way that employers become aware of their obligations is usually as a result of media coverage of cases gone bad: employers being found liable, and we learn by others' mistakes,” Kerryn Tredwell, a partner at Hall & Wilcox Lawyers, told My Business.

“Disability is quite a broad term, and it can include past disabilities, current and even future. The future one astounds some people but, for example, if someone is likely for hereditary reasons to have a condition that hasn't yet onset, so it's a disability in the future – it's still a disability for the purposes of discrimination laws.”

According to Ms Tredwell, some employers struggle to determine whether or not one of their employees has a disability.

“[As] an example, if you have an employee who is having excessive sickness absences, it's quite common, in my experience, that employers will treat that as an absence problem, so almost like a disciplinary issue,” she said.

“If they're not aware that those absences, or they don't put two and two together and work out that those absences are the result of a disability, then they might not recognise that the obligation to make a reasonable adjustment has arisen.”

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Ms Tredwell said that while discrimination claims are not as common in Australia as other Western countries, they are on the increase, and as such, she is urging business owners to take a proactive approach to knowing their obligations and ensuring they are adequately met.

“The best advice I can give is to seek expert guidance. Don't make assumptions about what your employee with the disability can and can't do – that is a trap that employers often fall in. So don't make assumptions; get medical advice, find out what the issues are and what adjustments the experts think you can make,” she said.

“And then the second part of it is [to] discuss that with your employee: talk to them about it. Ultimately, you don't necessarily need their agreement as to what is a reasonable adjustment, but you should be consulting with them. So it's a two-pronged approach.”